The Federal Energy Regulatory Commission (FERC) on September 5, 2002 announced plans to aggressively restrict public access to government information it deems sensitive. Shortly after the September 11 attacks FERC limited access to huge amounts of information that it controls and released an initial policy statement addressing this issue in October 2001. Then on January 16, 2002, FERC announced a Notice of Inquiry (NOI) (published in the Federal Register on January 23, 2002) seeking public input on possible regulatory changes that would allow the agency to restrict unfettered general public access to what it termed Critical Energy Infrastructure Information (CEII).While FERC is not the only agency to take steps to remove or restrict information in the wake of last year’s terrorist attacks, this rule would be the first permanent action by a government agency. Under this rulemaking proposal any information deemed potentially useful to a person planning an attack on "production, generation, transportation, transmission or distribution of energy" would be made exempt from the Freedom of Information Act's (FOIA) mandatory disclosure requirement and overseen by a "critical energy infrastructure coordinator" who would process non-FOIA requests.

FERC utilizes several justifications to make its case that the agency is not altering or ignoring its responsibilities under FOIA. For example:

• FERC asserts that it is possible to exempt CEII under a competitive harm exemption. The commission asserts that since a terrorist attack on a facility would result in financial harm to that facility any information that could be used by terrorists could be exempt from disclosure.
• The Commission states that CEII could have a mandatory exemption, as its disclosure would undermine its program effectiveness. FERC explained that while companies are legally required to cooperate with and submit information to FERC, if CEII were disclosed by the Commission companies would not be as trusting of the Commission and less forthcoming in the more subjective portions of their submissions. According to FERC this would impair its ability to effectively function.
• FERC also re-interprets a FOIA exemption for law enforcement activities, which has typically been used to protect information about ongoing criminal investigations or procedures being conducted by the FBI, CIA or police. In its rulemaking proposal FERC indicates that since it is a regulatory agency required to implement several federal laws, including the Federal Power Act and Natural Gas Act, then it may utilize this exemption.

However, one can't help but realize that thousands of documents that were publicly available last year will suddenly be exempt from FOIA under the FERC proposal. This inevitably requires a major reinterpretation of FOIA.

This FERC regulatory process, which likely will be challenged on grounds that it exceeds the statutory intent of FOIA, occurs as Congress is wrestling with a similar issue on the bill to create a new Homeland Security Department.

Interested parties have 30 days to comment on the proposed rulemaking before a final decision is due in mid-October.